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Gaston v. Harkless

Court of Appeals of Louisiana, Fifth Circuit

December 30, 2019

ALEISHA GASTON
v.
WILLIE EARL HARKLESS, INDIVIDUALLY, AND WILLIE EARL HARKLESS, DDS, D/B/A "SMILES" FAMILY DENTISTRY AND XYZ INSURANCE COMPANY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 788-976, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, ALEISHA GASTON Veleka Eskinde Ann M. Johnson-Griffin

          COUNSEL FOR DEFENDANT/APPELLEE, WILLIE EARL HARKLESS, D.D.S., D/B/A "SMILES" FAMILY DENTISTRY Donald C. Douglas, Jr. Robert G. Harvey, Sr.

          Panel composed of Judges Jude G. Gravois, Hans J. Liljeberg, and John J. Molaison, Jr.

          JUDE G. GRAVOIS JUDGE

         Plaintiff, Aleisha Gaston, appeals a judgment of the trial court sustaining an exception of prescription filed by defendants, Willie Earl Harkless and Willie Earl Harkless, DDS, d/b/a Smiles Family Dentistry, LLC. For the following reasons, we affirm the judgment in part, reverse the judgment in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         On September 15, 2017, Dr. Harkless provided dental services to Ms. Gaston. On October 16, 2017, Dr. Harkless and Ms. Gaston began a sexually intimate relationship. According to Ms. Gaston, prior to their first sexual encounter, Dr. Harkless advised her that he did not have any sexually transmitted diseases ("STDs") and protection was not needed. On October 17 or 18, the dates of their second and third sexual encounters, Dr. Harkless gave Ms. Gaston approximately 40 penicillin pills from a supply he kept in his dental office. He did not give Ms. Gaston a specific reason as to why he was supplying her with the medicine; nonetheless, Ms. Gaston took the pills as directed. Because of Dr. Harkless' insistence that Ms. Gaston take the pills, she scheduled an appointment with her gynecologist and was subsequently tested for all STDs. On October 25, 2017, the test results came back as "abnormal." On that date, Ms. Gaston informed Dr. Harkless about the test results, and he denied having an STD (herpes). However, on October 27, 2017, after a second round of tests, Ms. Gaston tested positive for both Herpes Simplex Virus 1 and Herpes Simplex Virus 2. When confronted with the results, Dr. Harkless again denied having herpes. Subsequently, on or about November 2, 2017, hives began to appear all over Ms. Gaston's body. Thereafter, she was diagnosed with a fixed drug reaction to the penicillin given to her by Dr. Harkless. Dr. Harkless' last sexual encounter with Ms. Gaston occurred on or about November 22, 2017.

         On October 28, 2018, Ms. Gaston fax-filed a petition for damages alleging two causes of action: 1) intentional exposure and transmission of a sexually transmitted disease; and 2) intentional infliction of emotional distress. In her first claim, Ms. Gaston argued that she did not have a sexually transmitted disease prior to her intimate relationship with Dr. Harkless, and the injuries she sustained were a direct and proximate cause of Dr. Harkless' actions. In her second claim, Ms. Gaston argued that the elements of intentional inflection of emotional distress are evident in Dr. Harkless lying to her about not needing protection and thus intentionally infecting her with an STD. Furthermore, she alleged that the elements of intentional infliction of emotional distress are evident because sometime after February 10, 2018, Dr. Harkless had a person on his staff text an image of him holding a gun to Ms. Gaston in an effort to intimidate her into not taking legal action against him.

         On December 17, 2018, defendants filed an exception of prescription. They argued that Ms. Gaston's claims are subject to a one-year prescriptive period and are prescribed on the face of the pleadings. Specifically, regarding the claim of intentional exposure and transmission of an STD, defendants argued that prescription began to run on October 16, 2017, when Ms. Gaston and Dr. Harkless began their sexually intimate relationship, or at the latest, October 25, 2017, when Ms. Gaston received the "abnormal" test results and discussed the results with Dr. Harkless. Either date, defendants argued, is more than one year from the date suit was filed on October 28, 2018. Further, regarding a claim of improper prescription of medication which caused an adverse reaction, defendants argued that the medication was given on October 17 or 18, 2017, well over a year before suit was filed on October 28, 2018.

         On February 8, 2019, Ms. Gaston filed a first amending petition for damages, alleging therein as an additional claim that Dr. Harkless was negligent in prescribing medication on October 17 or 18 that resulted in a fixed drug reaction on November 2, 2017.[1] As a result of the reaction, she was left with dark lesions on her body that are both permanent and highly visible. She claimed that Dr. Harkless' failure to make any inquiries into her medical history and current prescriptions caused the fixed drug reaction. She alleged that the medicine was prescribed in an effort to mask the symptoms of the STD that Dr. Harkless transmitted to her.

         The trial court held a hearing on the exception of prescription on April 1, 2019. Neither Ms. Gaston nor her counsel were present at the hearing. At the hearing, defense counsel explained to the court that the hearing on the exception had originally been set for January 23, 2019, and that he had agreed to reset the matter after plaintiff and her counsel did not appear because of alleged service issues. Defense counsel explained that on March 6, 2019, after the matter was reset to April 1, 2019, he sent a copy of the signed order resetting the hearing to April 1, 2019 to Ms. Gaston's counsel by certified mail. On March 13, 2019, defense counsel received by fax a copy of a letter from Ms. Gaston's counsel to the 24th Judicial District Court Clerk of Court concerning the insufficiency of service of defendants' exception of prescription. In the letter, Ms. Gaston's counsel claimed that on March 8, 2019, she received a copy of the order resetting the hearing on the exception of prescription for April 1, 2019. She claimed, however, that she had not been properly served with a copy of the exception of prescription. At the hearing on April 1, 2019, defense counsel stated that he faxed a copy of the exception of prescription to Ms. Gaston's counsel on December 17, 2018, the day he filed the exception with the court.

         As to the exception of prescription, at the hearing on April 1, 2019, defendants argued that Mr. Gaston's claims are prescribed on the face of the pleadings, and that everything pleaded occurred well over a year before the petitions were filed. No evidence was submitted in support of defendants' arguments. At the conclusion of the hearing, the trial court orally granted the exception of prescription. On April 25, 2019, the trial court signed a written judgment granting the exception and dismissing all claims against defendants with prejudice.

         On April 9, 2019, Ms. Gaston filed a motion for a new trial. In her motion, she alleged that the exception of prescription was neither sent by certified mail to her counsel, nor was service effectuated by the Sheriff. She claimed that service remains outstanding and the judgment issued must accordingly be vacated.

         Following a hearing on May 22, 2019, the trial court signed a judgment on June 24, 2019 denying the motion for a new trial. This timely appeal followed.

         ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

         In her first assignment of error, Ms. Gaston argues that the trial court erred in finding that she was properly served with the exception of prescription.[2]Specifically, she argues that the trial court's finding that service was proper pursuant to La. C.C.P. art. 1314(A)(4) was wrong. Ms. Gaston argues that the faxed pleading contained a rule to show cause hearing date, and pursuant to La. C.C.P. art. 1313(C), the pleading, and not just the order, must be served by registered or certified mail. She also argues that when service is made by mail delivery or electronic means, the party or counsel making the service shall file a certificate of the manner in which service was made in the record pursuant to La. C.C.P. art. 1313(B). She claims no such certification was filed by defendants into the record of this matter. In the alternative, in her third assignment of error, Ms. Gaston argues the motion for a new trial should have been granted in the interest of justice.

         Defendants argue in response that Ms. Gaston admitted to receiving the order setting the hearing date by certified mail. She also admitted to receiving a copy of the exception of prescription. Thus, they ...


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